Sexual Harassment in the workplace

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From 11 November 2021, eligible workers can make an application to the Fair Work Commission (FWC) seeking an order to stop sexual harassment if they believe they have been sexually harassed at work.

These new rights came into effect on 10 September 2021 when the Fair Work Act 2009 (Cth) (FWA) was updated through the introduction of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Respect at Work Amendments) to address sexual harassment at work (amongst other things).

The Respect at Work Amendments aim to protect and empower workers to act against sexual harassment at work, by including:

  • stop sexual harassment orders;
  • a definition of sexual harassment; and
  • sexual harassment as a valid reason for dismissal.

What are Stop Sexual Harassment Orders?

Previously workers were only able to obtain orders with respect to bullying in the workplace. The Respect at Work Amendments have extended the existing FWA provisions to include orders to stop sexual harassment. Eligible workers, who believe they have been sexually harassed at work, may now apply for an order to stop sexual harassment.

The FWA gives ‘sexual harassment’ (or ‘sexually harass’) the same meaning as provided for under section 28A of the Sex Discrimination Act 1984 (Cth) (SDA), which states:

  • … a person sexually harasses another person (the person harassed) if:
    • the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed;
    • engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

      in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Further clarification as to “conduct of a sexual nature” and circumstances to be considered are outlined under subsections 28(1A) and 28(2) of the SDA.

The Respect at Work Amendments also confirms that sexual harassment at work falls within the category of serious misconduct and may be a valid reason for dismissal, including summary dismissal, under the FWA.

At the date of this publication, the Commission has a draft benchbook for Orders to stop sexual harassment, which contains summaries of the key elements and principles of stopping sexual harassment in the workplace to assist individuals in lodging applications. The benchbook will likely be formalised in the future in a similar fashion to the General Protections and Unfair Dismissal benchbooks.

If you believe you have been sexually harassed at work, or have any questions in relation to your rights as an employee or employer, please do not hesitate to contact our team.

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